Gay Marriage’s Ballot Test

There is one unavoidable fact about American voters and same-sex marriage: every time the people have had chance to speak on the subject, they have voted it down. Over the past decades, voters in twenty-eight states have passed constitutional provisions banning same-sex marriage. The trend continued as recently as earlier this year, in North Carolina voted to ban such marriages.

This may change in November, when voters in Maine (for a second time), Maryland, Minnesota and Washington State have their say. The precise nature of the questions in each state varies. In Maryland and Washington, the voters will decide whether to override new state laws that allow same-sex marriage. The measure in Minnesota, if passed, would limit marriage to one man and one woman, and the one in Maine would explicitly allow same-sex marriage. Still, the larger issue is the same on all of these issues. Do the voters want to permit gay people to marry in their state?

As a technical legal matter, the results of these referenda are irrelevant to legal questions about gay marriage that are now before various courts. The Supreme Court will soon reveal whether it will hear one or two major cases about same-sex marriage this year. In one, the federal appeals court in Boston declared the Defense of Marriage Act (DOMA) unconstitutional; in the other, the federal appeals court in San Francisco invalidated Proposition 8, which barred same-sex marriage in California. The Constitution either does or does not guarantee the rights of gay people to marry—and the opinions of voters has nothing to do with resolving that question. The whole point of judicial review is to protect minority groups from having their rights violated by the whims of the majority. In theory, the work of the courts and the will of the voters operate on entirely separate tracks.

The real world, however, works very differently. The courts, especially the Justices of the Supreme Court, are acutely aware of how their rulings reflect (or conflict with) public opinion. Even Justices who are sympathetic to legal claims worry when their positions put them too far out of step with the voters. Ruth Bader Ginsburg, for example, who made her name as the leading feminist lawyer of her generation, has expressed such views. Though Ginsburg herself always believed that women have a legal right to an abortion, she has often expressed unease with the Court’s approach in the 1973 landmark of Roe v. Wade.

In Ginsburg’s view, the Court generally should follow rather than lead on such controversial social issues. This is what happened with the Court and racial intermarriage. It was not until 1967, in Loving v. Virginia, that the Justices got around to declaring that states could no longer ban interracial marriage. Many (but not all) such laws were ignored or obsolete by that point. This is not to diminish the significance of Loving. The case was and remains a key practical and symbolic statement about race and the constitution. But by 1967, the hard work of changing the country on this issue had already been done by the civil-rights movement. The Court was a lagging indicator of where the country already was.

And so while both cases, as I wrote recently, are potential landmarks, neither may turn out to be as important as four ballot initiatives. The votes will give us the best picture of where the country is on same-sex marriage. The snapshot will be imprecise, of course. All four states are generally Democratic in their orientation, so they are not a true cross-section of country. But given the Court’s history, even the more liberal justices may be reluctant to impose same-sex marriage on the country if the people—the voters—repeatedly say that they do not want it. The polls predict close races in all four states. The results will echo well beyond their borders.

Photograph by Chris Maddaloni/Getty.

Jeffrey Toobin has been a staff writer at The New Yorker since 1993 and the senior legal analyst for CNN since 2002.